Amaca Pty Ltd v Karakasch

[2004] NSWCA 79

CITATION:	Amaca Pty Ltd v Karakasch [2004] NSWCA 79
HEARING DATE(S):	26/02/04, 27/02/04
JUDGMENT DATE:	22 March 2004
JUDGMENT OF:	Santow JA at 1; Cripps AJA at 2
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	Appeal from Dust Diseases Tribunal of NSW - Questions of law (s 32) - Adequacy of reasons
LEGISLATION CITED:	Dust Diseases Tribunal Act 1989 s 32
CASES CITED:	Husher v Husher (1999) 197 CLR 138 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 State of New South Wales v Moss (54 NSWLR 536)
PARTIES :	APPELLANT Amaca Pty Ltd RESPONDENT Robyn Elizabeth Karakasch, Executor of the Estate of the Late Ian Victor Karakasch
FILE NUMBER(S):	CA 40653/03
COUNSEL:	APPELLANT Ms A J Katzmann SC with Mr R A O'Keefe RESPONDENT Mr J T Gleeson SC with Mr A J Abadee
SOLICITORS:	APPELLANT Phillips Fox RESPONDENT Slater & Gordon

LOWER COURTJURISDICTION:	Dust Diseases Tribunal of NSW
LOWER COURT FILE NUMBER(S):	516/02
LOWER COURT JUDICIAL OFFICER :	Maguire J

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CA 40653/03

SANTOW JA
CRIPPS AJA

Monday 22 March 2004

AMACA PTY LTD v ROBYN ELIZABETH KARAKASCH (Executor of the Estate of the Late Ian Victor Karakasch)

Judgment

1 SANTOW JA: I agree with Cripps AJA

2 CRIPPS AJA: This an appeal from a decision of his Honour Judge Maguire in the Dust Diseases Tribunal of New South Wales published on 17 April 2003. The learned trial judge awarded the respondent the sum of $719,477 as compensation for personal injury to the deceased being mesothelioma consequent upon exposure to asbestos dust and fibre and which led to his death in 2003.

3 In his award the learned trial judge allowed the sum of $369,001 for future loss of earning capacity. At trial the appellant submitted that the respondent was entitled to only $32,778 for future economic loss.

4 Appeals from the Dust Diseases Tribunal of New South Wales are limited to questions of law. (See section 32 Dust Diseases Tribunal Act 1989).

5 From 1998 until the onset of his illness the deceased and his wife ran the Marlin Motel at Nelson Bay. The appellant has conceded that it was open to the learned trial judge to calculate loss of earning capacity of the deceased as though he were the sole trader and that he would have continued working until aged 70 – a period of 14 years from the date of the trial.

6 The learned judge clearly understood the task that confronted him which was conformably with the decision in Husher v Husher (1999) 197 CLR 138 to determine what, had the deceased not been injured he would, not could, have earned in the future. At the date of trial he could earn nothing. The question at issue between the parties before the learned trial judge was how his loss of future economic earning capacity should be calculated.

7 As to this the learned trial judge said:

“Counsel canvassed alternative ways of quantifying the plaintiff’s loss. Ms Katzmann urges, and Mr…